' This is a Civil Revision Application, challenging the judgment and the decree by learned District Judge, Karachi East in Civil Appeal No,62 of 1986.
2. Admittedly respondents Nos.1 to 5 are employees of applicant No,1, University of Karachi. Under an order dated 29-8-1983 the respondents Nos.2 to 5 were promoted as Junior Assistant Librarians in Pay Scale No,17. Respondent No,1 Mohammad Rafiq filed Suit No,3419 of 1983 in a Civil Court of Karachi East for a declaration that the order dated 29-8-1983 promoting the respondents Nos.2 to 5 was illegal, void inoperative and bad in law and it was initiated by an incompetent authority.
Respondent No,1 also sought issuance of permanent injunction, restraining the applicants from implementing the said order. Respondent No,1 also prayed for an injunction restraining the respondents Nos.2 to 5 from functioning or from drawing the salary in consequence of the impugned order. Respondent No,1 also sought recovery of salary in Scale No,17 with effect Mr. Shahenshah Hussain, learned counsel for the respondent No,1 from 1-3-1979. With his suit the respondent No,1 also moved an application for interim injunction in identical terms. Respondents Nos. 2 to 5 moved an application under Order 7, Rule 11 of C.P.C. For rejection of the plaint. The applicants moved an application under Section 51 of the University of Karachi Act. Under an order dated 5-2-1984 learned trial Court dismissed the application for issue of interim injunction as well as 'the application for rejection of the plaint and granted application of the applicants moved under section 51 of the University of Karachi Act.
3. Subsequently the applicants moved on 27-2-1984 an application under Order 7, Rule 11, C.P.C. For rejection of the plaint on the ground that the maintainability of the suit was barred by the provisions contained by Section 52 of the University of Karachi Act and that the plaint did not disclose cause of action for the purposes of Section 9 of C.P.C. Said application was accepted and the plaint was rejected by the trial Court under an order dated 9-8-1986.
4. Said order was challenged in Civil Appeal No, 62 of 1986 by the respondent No,1 in Court of the District Judge, Karachi East. Learned District Judge under the impugned judgment dated 8-12-1986 set aside the order of the trial Court dated 9-8-1986 and remanded the case to the trial Court with direction to decide the matter after framing the issues and recording evidence on merits. Hence this revision.
5. Mr. Rehanul Hassan Farooqui, learned counsel for the applicants argued that suit of the respondent No,1 was not maintainable in the light of the provisions contained by Section 42 of the Specific Relief Act and that the suit was also barred by a judgment dated 16-11-1983 given by a Division Bench of this Court in Constitution Petition No,D-760 of 1983, which was filed by respondent No,1 against the applicants and the respondents Nos.2 to 5. In this respect learned counsel relied on the case of Asif Jah Siddique v. Government of Sindh and others (PLD 1983 S.C. 46). It was further argued that in his plaint the respondent No,1 had not challenged constitution of the Selection Board which had selected the respondents Nos.2 to 5 for promotion and that the suit was barred by Sections 51 and 52 of the University of Karachi Act. Commenting on the allegations in the plaint about the order dated 29-8-1983 being illegal and mala fide the learned counsel referred to the provisions contained by Order 6, Rule 4 of C.P.C. And argued that specific allegations constituting the mala fides had not been given and that it was not shown as to how the impugned order was illegal or was beyond the scope of the University of Karachi Act. It was further argued that the impugned order could not be challenged on ground of mala fides because such orders were not excepted from the cover provided by sections 51 and 52 of the University of Karachi Act. In this respect it was argued that something which was not enacted by the Legislature cannot be read to be part of a statute. In support learned counsel for the applicants cited certain cases which would be discussed at appropriate place argued that the Selection Board which recommended the promotion of respondents Nos.2 to 5 was not constituted according to the provisions of the University of Karachi Act, and consequently it cannot be said that promotion of respondents Nos.2 to 5 was within the four corners of law and as such the promotion can be challenged in a Civil Court, It was further argued that the suit was filed by the respondent No,1 was maintainable because if the order dated 29-81983 was set aside that would clear way for the respondent No,1 to be promoted. It was further argued that the provisions contained by Section 42 of the Specific Relief Act were not exhaustive and that there can be suit for declaration in respect of a matter not coming within four corners of said section. It was also argued that the trial Court should have given a chance to respondent No,1 to lead evidence and to prove his allegations made in para 22 of the plaint.
7. Section 51 of the University of Karachi Act, 1972 says that no Court shall' have jurisdiction to entertain any proceedings, grant any injunction or make any order in relation to anything done or purported to have been done or intended to A be done under the said Act. In this respect there can be no difference with view that an act desired to be protected from being attacked in a Civil Court should be the one, which has been taken under the said Act or which purports to have been taken or intended to be taken under the said Act. In this respect learned counsel for respondent No,1 contended that despite ouster of jurisdiction a Civil Court can examine a case where the allegation is that the impugned order is nullity in law or it is mala fide. In support of his contention learned counsel for respondent No,1 cited the cases of (a) Secretary of State v. Mask & Co. (AIR 1940 P.C.
105), (b) Mian Mohammad Latif v. Province of West Pakistan and another (PLD 1970 SC 180), (c)
Muhammad Din and others v. Imamdin and another (PLD 1947 Privy Council 317), (d) Inayatullah and others v. MA. Khan and others (PLD 1964 SC 126) and (e) Haji Mohammad Aslam Aijaz Ali and Bros. v. Cotton Trading Corporation of Pakistan Ltd. And others (1985 CLC 848).
' In (a) above it was held that exclusion of the jurisdiction of the Civil Courts is not to be readily inferred but such exclusion must either be explicitly expressed or clearly implied and that even if the jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. In (b) above it as held that the Civil Courts have jurisdiction to examine into cases where statutory provisions have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. In (c) above it was held that a Civil Court has power to entertain a suit in which the Question is whether the executive authority has acted ultra vires. In (d) above it as held that Civil Court was proper forum for deciding the question whether seer of Waqf property was legitimate under Islam and such conflict cannot be resolved by the Chief Administrator Auqaf, In
(e) above the view taken was that uster clause does not extend to cases where it is alleged that the action taken is of in conformity with the Act or the Rules made thereunder or that the action is in excess of the authority conferred by the Act or is without jurisdiction. There can be no cavil with the observations made in the cited cases. However, in the instant case the applicants have not specified anywhere in their plaint as to how the impugned office order dated 29-8-1983 issued by the University of Karachi, appointing the respondents Nos.2 to 5 as Junior Assistant Librarians in Dr. Mahmood Hussain Library was illegal or void or in operative or mala fide. In this respect learned counsel for the applicants drew my attention to Order 6, Rule 4 of C.P.C. Which says that in all cases in which the party pleading relies on any misrepresentation, fraud, breach of trust, willful default, or undue influence, and in all other cases in which particulars may be necessary beyond such as are exemplified in the forms given in Appendix particulars with dates and items if necessary shall be stated in the pleading. This is one of the basic principles of the law of pleadings. I do not agree with learned counsel for the respondent No,1 that the respondent No,1 would have supplied such particulars if he was called upon to file further and better statement or particulars under Order 6, Rule 5 of C.P.C. Since the plaint was drafted by an Advocate, he was supposed to be conscious of the provisions contained by Section 51 of the University of Karachi Act and consequently the plaint should have been drafted in accordance with the principles of the law of pleadings as given under Orders 6 and 7 of C.P.C. Although the plaint is otherwise very lengthy, but it does not give specific reason for holding the impugned order to be illegal, void, inoperative etc.
8. Learned counsel for respondent No,1 challenged constitution of the Selection Board to be illegal, but he did not give reasons for the same. In the plaint too no reasons have been given, on the basis of which the constitution of the Selection Board can be held to be illegal. Although the respondent No,1 was not supposed to give evidence in his pleadings, but he was to give the material facts on which he was relying for his claim as provided by order 6, Rule 2 of C.P.C.
9. Learned counsel for the applicants argued that the impugned order was protected by Section 51 of the University of Karachi Act and even if it was mala fide, the Civil Courts had no jurisdiction in the matter because Section 51 of the said Act protected even mala fide orders from being challenged in Civil Courts. In support learned counsel for the applicants cited the cases of (i)
Pakistan v. Zeal Pak Cement Factory Ltd. (1985 SCMR 1968), (ii) Mohammad Iqbal Khan Niazi v.
Vice-Chancellor University of Punjab (PLD 1979 SC 1), (iii) Inayatullah v. Mian Ghulam Ahmed and others (PLD 1984 SC 369), (iv) M/s. Hamdard Dawakhana v. Commissioner of Income Tax (PLD 1980 SC 84), (v) Malik Ghulam Mustafa Khar and others v. Pakistan and others (PLD 1988 Lahore 49), (vi) M.A. Rashid v. Government of Pakistan and others (PLD 1988 Quetta 70) and (vii)
Zahiruddin and others v. State (PLD 1988 Quetta 22).
' In (i) above it was held that where the language of the statute unmistakably points to the meaning, presents no difficulty in understanding, injection of a word of one's choice would clearly amount to impermissible intermeddling with legislative intent and purpose and that nothing is more unfortunate than a disturbance of the plain language of the legislature by an attempt to use equivalent terms. In (ii) above it was held that the words in a statute must be construed according to their ordinary meaning and if there is no ambiguity about the ordinary meaning of the words which have to be construed, then the Courts would not be justified in altering the ordinary meaning of those words by resorting to complicated canons of construction. In (iii) above it was held that where the words in a statute are clear and unambiguous they should be construed according to their tenor and meaning for that gives the intent and purpose of the legislation and any attempt to bring within it a case not covered by straining the language would amount to defeating the object of a legislation. In (iv) above it was held that if the language of the enacting part of the statute does not contain the provisions which are said to occur in it, one cannot derive these provisions by implication from a proviso. It was also held that where the language of the main enactment is clear and unambiguous, a proviso can have no repercussion on the interpretation of the main enactment so as to exclude from it by implication what clearly falls within its express terms. In (v) above the view taken was that when an authority in the nature of legislative competence is imminently lacking, the omission cannot be supplied by the judiciary. In (vi) above the view taken was that if the words are clear and unambiguous, then literal construction must be followed and that the intention of the law-giver can be seen from the words themselves and no foreign element is to be introduced therein but the interpretation must be harmonious and reasonable. In (vii) above the view taken was that if the words are plain .And clear, need does not arise to have resort to different rules of interpretation but to give effect to the ordinary grammatical meaning of the words used in an enactment.
10. While enacting Section 51 of the University of Karachi Act, the Legislature appears to have protected those actions of the functionaries of the University which were performed or done under the said Act or which purported to have been done or intended to have been done under the said Act. Moreover, the protected actions are supposed to have been taken bona fidely. Even for a D moment it cannot be conceived that the legislature while enacting Section 51 of said Act protected even the mala fide acts. If an act is mala tide it cannot be treated to have been done or purported to have been done or intended to be done under the said Act. In the case of Abdul Rauf and others v. Abdul Hameed Khan and others PLD 1965 SC 671, it was held that no order is an order passed "under the Act", if it was not passed in exercise of powers granted by the Act and was therefore, without jurisdiction. In the same authority it was observed that a mala fide act is by its nature an act without jurisdiction. TS## I, therefore, disagree with learned counsel for the applicants that mala fide orders are also protected by Section 51 of the said Act. However, in the present case the impugned order is not alleged to be mala fide although it has been alleged that posting of the respondents Nos.2 to 5 was mala fide and unlawful. Here again necessary facts constituting malice in mind of the authority passing the impugned order have not been given. Another weighty reason for maintaining the order about rejection of the plaint is that the controversy being raised under the present suit was resolved in Constitutional Petition No,D-760 of 1983, which was dismissed by a learned Division Bench of this Court on 16-11-1983. The observations made in the judgment by learned Division Bench bar trial of the suit in view of the observations made by the Supreme Court in the case of Asif Jah Siddiqi v. Government of Sindh and others (PLD 1983 SC 46), where it was held that a F suit filed urging the questions expressly or impliedly raised before the High Court and decided in its writ jurisdiction earlier, would be barred.
11. For the foregoing reasons I would accept this revision application and set aside the impugned judgment and decree passed by learned District Judge and restore order of learned trial Court dated 5-2-1984 rejecting the plaint. No order as to costs.